THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24

(Not for Publication — Rule 28, Arizona Rules of Civil Appellate Procedure)

MEMORANDUM DECISION

HOWE, Judge.

¶1 Grant and Teri Goodman ("the Goodmans") appeal the superior court's dismissal of the remaining counts of their complaint against Quarles & Brady, LLP ("Quarles"), which were remanded after the Goodmans' first appeal. The Goodmans contend that this Court's decision and mandate preclude the dismissal of the remanded counts. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2006, the Goodmans filed an amended complaint against Quarles and a Quarles' attorney for legal malpractice, arising from a loan transaction between Comerica Bank ("Comerica") and certain Goodman entities that resulted in receivership and bankruptcy proceedings in 2003. The complaint alleged that Quarles represented Comerica in the loan transaction while the Goodmans were concurrent clients, failed to adequately perfect certain security interests for the loan, made false representations to state and bankruptcy courts that Comerica had perfected interests in the Goodmans' collateral, attempted to liquidate the Goodmans' assets, and concealed its conduct from the Goodmans. The superior court entered summary judgment in favor of Quarles, finding that the Goodmans had waived any potential conflict in a signed writing and by their actions. This Court affirmed the judgment in 2009.

¶3 In December 2008, the Goodmans and their business entities filed a nine-count complaint against Quarles and others. The complaint alleged, among other things, that Quarles represented Comerica adversely to the Goodmans while still representing the Goodmans, that it liquidated the Goodmans' assets to concurrent clients, that it made false representations to state and federal courts regarding the Goodmans' assets, that it committed perjury in bankruptcy court, that it concealed or destroyed the Goodmans' client files, that it received stolen data from the Goodmans' computer servers, that it tampered with bankruptcy witnesses and fiduciaries, that it forged title signatures, and that it took these and other actions under color of state title by involving state and judicial officers. The Goodmans alleged claims of (I) Arizona Racketeering, (II) Consumer Fraud, (III) Civil Rights Violations, (IV) Aiding and Abetting Fraud, (V) Breach of Contract, (VI) Antitrust, (VII) Breach of Fiduciary Duty, (VIII) Constructive Trust, and (IX) Intentional Concealment/Misrepresentation.

¶4 Quarles moved to dismiss the complaint, arguing that the Goodmans' claims were barred by claim preclusion because the Goodmans had made similar claims in the prior action on which judgment had been entered in favor of Quarles. Quarles further argued that counts three and six failed to state a claim, that statutes of limitation barred counts two and seven, and that counts one, two, four and nine were not pleaded with sufficient particularity for fraud claims.

¶5 The superior court dismissed the complaint, finding that claim preclusion applied because, although the nine claims were somewhat different than those previously pursued, they arose from the same common nucleus of operative facts. The court further found that counts three and six failed to state a claim as a matter of law, and statutes of limitation barred counts two and seven. The Goodmans appealed.

¶6 This Court affirmed the dismissal of counts two, three, six, and seven because the Goodmans failed to challenge the court's rulings regarding failure to state a claim and statutes of limitation. This Court reversed and remanded the five remaining counts: one (racketeering), four (aiding and abetting), five (breach of contract), eight (constructive trust), and nine (intentional concealment/misrepresentation). This Court noted that, in determining the applicability of claim preclusion, Arizona follows the "same evidence" test, which provides that a plaintiff may not bring a second claim based on the same transaction if the evidence needed to prevail on the second claim was the same as that needed in the first. See Phoenix Newspapers, Inc. v. Dep't of Corrs., 188 Ariz. 237, 240, 934 P.2d 801, 804 (App. 1997). We further noted that claim preclusion applied only to a judgment on the merits. See Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986).

¶7 This Court found that claim preclusion did not apply because Quarles had based its argument on counts in the prior litigation that had been voluntarily withdrawn and dismissed without a judgment on the merits. This Court also recognized that the superior court had not applied the "same evidence" test. We remanded on the five remaining claims "for proceedings consistent with" our decision.

¶8 Upon remand, Quarles moved to dismiss the remanded claims. Quarles argued that the Goodmans' racketeering claim failed because the complaint did not allege facts establishing at least two statutorily defined acts of racketeering, noting that the acts of racketeering alleged either did not meet the statutory definition of an act of racketeering or were not factually supported in the complaint. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-2301(D)(4), -2314.04(A), (T)(3) (West 2013).1 Quarles also argued that even if the complaint could be construed as alleging two related acts meeting the statutory requirements for a racketeering claim, the complaint could not establish the statutory requirement that the acts be continuous. See A.R.S. § 13-2314.04(T)(3)(a)(iii). Quarles maintained that "continuous" referred to a series of acts over a substantial period of time and that the acts of which the Goodmans complained all occurred within a four-month period and ended when Quarles ceased representing Comerica, and so could not constitute continuous activity. It further argued that the complaint did not allege facts sufficient to establish the existence of an enterprise or that Quarles participated in an enterprise in violation of A.R.S. § 13-2312. See A.R.S. § 13-2312 (A), (B).

¶9 Quarles contended that the Goodmans' claim for aiding and abetting fraud, count four, failed because the claim failed to allege specific facts to support the charge. Quarles also argued, among other things, that even if such facts could be alleged, the Goodmans lacked standing to assert the claims on behalf of certain Goodman business entities and that as guarantors the Goodmans could not allege they suffered any injury resulting from Comerica's conduct. Quarles argued that the Goodmans' breach of contract claim failed because such a claim against former lawyers is limited to a breach of a specific promise, which had not been alleged, and because the claim, which was premised on Quarles' general duty to the Goodmans as clients, required the same evidence as the prior malpractice action decided in Quarles favor, and so was barred by claim preclusion. Quarles contended that the complaint alleged no facts to support the constructive trust claim in count eight, and that count nine, which was based on the Quarles' alleged wrongful destruction of the Goodmans' files, failed because Arizona did not recognize a claim for first-party spoliation. It also argued that the court should consider as true statements denying document destruction made in correspondence to which the complaint referred and disregard the Goodmans' conclusory allegations to the contrary.

¶10 In responding to the motion, the Goodmans addressed only the RICO claim. The Goodmans argued that conspiracy to commit perjury and concealing or destroying documents in other proceedings could support the RICO claim, that lawyers and their clients engaging in a cover-up constituted an associated enterprise, that the lawyers' acts intended to prevent discovery of prior misconduct were not isolated short-term acts but met the requirement of continuous acts, and that sufficient predicate facts had been alleged. The Goodmans also asserted that this Court had already validated the veracity of the facts alleged, "substantiating the RICO predicate acts" and that this Court's mandate precluded Quarles from making its arguments.

¶11 The court granted Quarles' motion to dismiss with prejudice:

The Goodmans appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶12 The Goodmans argue that in dismissing Quarles' complaint the superior court failed to comply with this Court's prior memorandum decision and mandate. We review de novo whether the superior court followed a mandate of an appellate court. Bogard v. Cannon & Wendt Elec. Co., 221 Ariz. 325, 334, ¶ 30, 212 P.3d 17, 26 (App. 2009).

¶13 An appellate court decision and mandate are binding on the superior court and must be enforced according to their true meaning and intent. Raimey v. Ditsworth, 227 Ariz. 552, 555, ¶ 6, 261 P.3d 436, 439 (App. 2011). Where the reviewing court has issued specific instructions, the superior court must obey those instructions. Tovrea v. Superior Court, 101 Ariz. 295, 297, 419 P.2d 79, 81 (1966). The superior court cannot consider any issues the appellate court decided, but may address issues that the appellate court did not expressly or impliedly determine. Cyprus Bagdad Copper Corp. v. Arizona Dep't of Rev., 196 Ariz. 5, 7, ¶ 7, 992 P.2d 5, 7 (App. 1999).

¶14 The Goodmans do not point to any particular portion of the appellate decision that barred the superior court's action. Rather, they argue that no exception applies to excuse the court from adhering to the appellate decision and mandate. We find, however, that this Court's decision and mandate did not preclude the superior court's action.

¶15 In our decision in the first appeal, we considered the superior court's dismissal of certain counts of the complaint on the grounds of claim preclusion. We reversed the court's decision and remanded those counts because the prior claims on which the motion had been based had been withdrawn and so had not been previously adjudicated. Quarles' more recent motion to dismiss the remanded claims was not based on the same grounds. In its new motion, Quarles asserted claim preclusion only with respect to the Goodmans' breach of contract claim—count five— and in doing so relied not on the previously withdrawn counts but on the malpractice claim, which had been fully adjudicated and which had not been relied on previously. We did not in the prior appeal consider the grounds asserted in Quarles' new motion, and nothing in our decision or mandate precluded the superior court from considering a second motion to dismiss on grounds different from the first.

¶16 The Goodmans suggest that the superior court should have allowed them to amend the complaint. The record shows, however, that the Goodmans did not request leave to amend. They have therefore waived this argument. See Ross v. Ross, 96 Ariz. 249, 252, 393 P.2d 933, 935 (1964) (appellant cannot complain that he should have been permitted leave to amend where no request was made); Scottsdale Princess P'ship v. Maricopa County, 185 Ariz. 368, 378, 916 P.2d 1084, 1094 (App. 1995) (this court will not consider on appeal arguments not first presented to the trial court). Moreover, on appeal, other than stating they should have been allowed to amend, the Goodmans fail to explain how the complaint could be amended to cure any defect and in fact offer no substantive argument in support of their claim. The argument therefore has also been abandoned on appeal. See Modular Sys. Inc. v. Naisbitt, 114 Ariz. 582, 587, 562 P.2d 1080, 1085 (App. 1977) (issue deemed abandoned where appellant does not state with particularity how court erred).

¶17 We find no impropriety in the superior court's considering and ruling on Quarles' motion to dismiss on remand. The Goodmans have presented no other coherent arguments claiming error. We therefore affirm.

CONCLUSION

¶18 For the foregoing reasons, we affirm the superior court's decision.

PATRICIA K. NORRIS, Presiding Judge, ANDREW W. GOULD, Judge, concurring.